Magistrates of Edinburgh v Trustees of St John's Church
| Jurisdiction | Scotland |
| Judgment Date | 15 December 1914 |
| Docket Number | No. 32. |
| Date | 15 December 1914 |
| Court | Court of Session |
Lord Dundas, Lord Mackenzie, Lord Cullen.
Superior and VassalFeu-contractBuilding restrictionsPrescriptionStatutory prohibition against building while subjects held by magistratesUnrestricted charter granted by magistratesPrescription by vassalStatute 56 Geo. III. cap. xli.
An Act of Parliament was passed in 1816 to enable [the Magistrates of Edinburgh] to carry into effect certain purposes in regard to the erection of a chapel at the west end of Princes Street and for effecting certain improvements in the neighbourhood thereof. The Act, which contained no prohibition against alienation by the Magistrates, by section 3 enacted that it should not be lawful or in the power of the Magistrates or their successors in office to erect or sanction the erection of any building whatever, other than the said chapel hereinbefore authorised to be erected on the subjects. Following on that Act a feu-charter of the ground on which the chapel was being erected was granted in 1817 by the Magistrates to the trustees of the chapel. Further portions of ground were granted to the trustees by feu-charters in 1818 and 1834. The charter of 1817 proceeded upon a reference to the Act and imposed upon the feuars certain obligations as to enclosing contained in the Act; the charter of 1818 proceeded upon a reference to that of 1817; while the charter of 1834 contained no reference to the Act or (except in the description of the subjects) to the previous charters. None of the charters contained any restriction against building.
In 1914 the Magistrates objected to a proposal of the trustees to build a vestry adjacent to the church on part of the ground feued, in respect that it would be a contravention of the Act and titles.
Held that the trustees were entitled to build the vestry in respect (1) that there were no restrictions in their feu-charters, and that they had enjoyed uninterrupted possession of the whole subjects upon these unrestricted titles for upwards of the prescriptive period; and (2) that they were not barred by the prohibition in section 3 of the Act of 1816, seeing that that restriction affected the Magistrates only, and was not a restriction imposed upon the lands into whose hands soever they might come.
Opinion that, were it to be held that section 3 of the Act of 1816 made it ultra vires of the Magistrates to alienate the lands without inserting the prohibition in the titles, the result would merely be that the grants were grants a non habente potestatem which had been made good by prescription.
In June 1913 the Lord Provost, Magistrates, and Council of the city of Edinburgh (first parties), and the Trustees of the Church of St John the Evangelist (second parties), presented a special case for the opinion and judgment of the Court, the point at issue between the parties being whether the second parties had a right to erect a vestry on a portion of the area of ground at the west end of Princes Street which was held by them as the vassals of the first parties, and on part of which the Church of St John was erected.
In 1816, following upon negotiations between the Magistrates and a committee appointed to carry into execution a plan for erecting the new church, the statute 56 Geo. III. cap. xli., was passed, entituled, An Act to enable the Lord Provost, Magistrates, and Council of the city of Edinburgh to carry into effect certain purposes in regard to the erection of a chapel at the west end of Princes Street, and for effecting certain improvements in the neighbourhood thereof, and in other parts of the extended royalty of the said city.
Section 1 * empowered the Magistrates to allot and set apart
sufficient ground at the west end of Princes Street for the chapel; section 2 imposed obligations on the owners of the chapel as to enclosing and laying out the ground to be acquired by them; section 3 enacted:It shall not be lawful to, nor in the power of the said Lord Provost, Magistrates, and Council, or their successors in office, to erect or sanction the erection of any building whatever, other than the said chapel hereinbefore authorised to be erected, on any part of the ground belonging to the community of the said city on the south side of Princes Street, excepting a gardener's or keeper's lodge, or hot-houses or conservatories, in such place or places as the said committee of proprietors of houses and areas in Princes Street, to be appointed as hereinafter mentioned, shall appoint.
In 1817, 1818, and 1834 the second parties obtained feu-charters from the first parties. The following statement with regard to them is taken from Lord Cullen's opinion:The first feu-charter was granted in 1817. It proceeds on a recital of sections 1 and 2 of the Act of 1816 and dispones two areas of ground in feu for a nominal feu-duty of one shilling per annum. The first of the two areas was disponed with the chapel or place of worship now erecting on the said piece of ground in terms of the said Act of Parliament. The charter laid on the feuars the obligations as to enclosing, &c., contained in section 2 of the Act. It did not further express restrictions as to building on the ground feued.
In 1818 the first parties granted a second feu-charter to the second parties in consideration of a price of 500 and a feu-duty of Id. Scots yearly, if asked only. This feu was granted primarily in order to furnish, in title, a site for a dormitory which had, prior to the date of the charter, been erected at the east end of the chapel. The ground was conveyed along with the dormitory standing on it but comprised more than the site of the dormitory. The charter proceeds on a reference to the granting of the charter of 1817. It does not recite the Act of 1816, and it expresses no restrictions as to building on the ground feued.
In 1834 the first parties, with consent of the trustees for the creditors of the city of Edinburgh, granted a third feu-charter in favour of the second parties, in consideration of a price of 1500 and a feu-duty of ten shillings per annum. The ground thereby feued lay to the south and south-east of the site of the chapel. The charter contains no reference to the Act of 1816, and imposes no restrictions of any kind as to the erection of buildings on the feu.*
The second parties were infeft in the first of the three feus above-mentioned in 1817, in the second feu in 1829, and in the third feu in 1834, and since these periods they have been in continuous and peaceable possession of the respective feus, in virtue of their infeftments.
The parties have found it impossible, owing to the lapse of time and absence of definite plans, to ascertain under which of the feu-charters above mentioned the ground forming the site of the proposed new building falls. They agree in stating (art. 15) that it is either (1) on part of the feu of 1817 and part of the feu of 1818, or (2) on the feu of 1834
In addition to the church or chapel, in 1817 or 1818 an arcade and terrace were built on the south side of the chapel and the vaults below the terrace were used as burial places, and in 1881 the trustees of the Church erected a chancel with choir-rooms at the east end of the chapel, no objection in either case being taken by the first parties. In 1876 the City of Edinburgh Road Trustees acquired from the second parties a strip of ground along the whole north frontage to Princes Street for the purpose of widening Princes Street, and this strip of ground was added to the width of the street, the railings bounding the second parties' property on the north being set back along the whole frontage to Princes Street.
The contentions of the parties as set forth in the case were as follows:
The first parties contended:(1) That there is a statutory restriction on the ground which at the date of the passing of the Act of 1816 belonged to the first parties on the south side of Princes Street, and that in terms of said statutory restriction no buildings whatever can be erected on said ground other than the chapel referred to in the said Act of 1816, or a gardener's or keeper's lodge, or hot-houses or conservatories. (2) That the chapel referred to in the said Act of 1816 is the building which was erected and completed in or about the year 1817 before the feu-charter of that year was granted in accordance with plans submitted to and approved of by the first parties in terms of the said feu-charter and no other. (3) That the Act of 1816 authorised and empowered the first parties to allot and set apart so much of the piece of ground at the west end of Princes Street belonging to the first parties, then occupied as a nursery for trees, as should be sufficient for the erection of a chapel or place of religious worship thereon; that the ground which was allotted or set apart for these purposes was the piece of ground first conveyed in the charter of 1817, and that the exemption from this statutory restriction of the chapel therein referred to can...
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